California, United States of America
The following excerpt is from People v. Lopez, D069363 (Cal. App. 2017):
commission of the offense.5 However, the two true findings are not legally inconsistent. (See People v. Grant (1951) 105 Cal.App.2d 347, 352 [verdicts are inconsistent when "rendered in response to charges of offenses the elements of which are identical"].) Section 12022, subdivision (a)(1), provides that it "shall apply to a person who is a principal in the commission of a felony. . . if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm." ( 12022, subd. (a)(1) [italics added].) Section 12022.53, subdivision (b), provides in pertinent part that "[n]otwithstanding any other provision of law, any person who, in the commission of [certain felonies], personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." Because the section 12022.53, subdivision (b) enhancement requires proof of an additional element (the defendant's own personal use of a firearm), and the section 12022, subdivision (a)(1) enhancement does not depend on any determination of which principal is armed, the elements of the two sections are not identical.
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